LIMITEDWAIVERTO MILACRON FINANCING AGREEMENT

EX-10.1 2 ex10-1.htm LIMITED WAIVER TO FINANCING AGREEMENT Limited Waiver to Financing Agreement
EXHIBIT 10.1
 
 


LIMITED WAIVER TO FINANCING AGREEMENT

LIMITED WAIVER TO FINANCING AGREEMENT, dated as of March 14, 2005 (this "Limited Waiver"), among Milacron Inc., a Delaware corporation ("Milacron"), each subsidiary of Milacron listed as a borrower or a guarantor on the signature pages thereto, the Lenders party thereto, JPMorgan Chase Bank, National Association, as administrative agent and collateral agent for the Lenders (in each such capacity, together with its successors in each such capacity, the "Administrative Agent" and "Collateral Agent", respectively).
 
W I T N E S S E T H:
 
WHEREAS, Milacron, certain subsidiaries of Milacron, the Lenders named therein, the Agents and the other parties thereto have entered into that certain Financing Agreement dated as of June 10, 2004 (as amended, supplemented or otherwise modified from time to time, the "Financing Agreement"; capitalized terms used herein but not otherwise defined herein shall have the meanings given such terms in the Financing Agreement);
 
WHEREAS, Milacron has requested that the Agents and the Lenders waive compliance with certain provisions of the Financing Agreement relating to the timely filing with the Securities and Exchange Commission (the "SEC") of an Annual Report on Form 10-K (or equivalent securities filing or any required amendment thereto) (a "Form 10-K") containing Milacron’s internal control report (the "Report") pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, as amended; and
 
WHEREAS, the Lenders and the Agents are willing to waive compliance with such provisions in connection with the timely filing of such Report on the terms and subject to the conditions set forth herein.
 
NOW, THEREFORE, in consideration of the premises and the agreements herein contained, each of the Loan Parties, the Lenders, and the Agents hereby agree as follows:
 
ARTICLE I  
 
LIMITED WAIVER
 
Section 1.1  Limited Waiver. Subject to the terms and conditions set forth herein, the Lenders hereby waive any inaccuracy in, or inability to make, representations and warranties in the Financing Agreement arising solely as a result of, or any Default or Event of Default under the Financing Agreement solely caused by, any delay in the timely filing of the Form 10-K or any amendment thereto containing the Report.
 
Section 1.2  Termination of Waiver. The waiver set forth in Section 1.1 hereof shall terminate and shall cease to be of further force and effect, without any further action by any Person, if (i) the Report is not filed as part of the Form 10-K or an amendment thereto on or before June 30, 2005 or (ii) the SEC or any other Governmental Authority commences an enforcement action or initiates any other formal action, suit or proceeding based upon any delay in the timely filing of the Report as part of the Form 10-K or an amendment thereto that could reasonably be expected to have a Material Adverse Effect. Upon any such termination, the Agents and the Lenders shall have all of their rights and remedies in respect of any Default or Event of Default under the Financing Agreement or any breach of the representations
 
 
LIMITED WAIVER
TO MILACRON FINANCING AGREEMENT
 
 
 and warranties contained in the Loan Documents, in either case arising as a result of any failure to timely file the Report as part of the Form 10-K or an amendment thereto.
 
ARTICLE II  
 
CONDITIONS TO CLOSING
 
This Limited Waiver shall become effective as of the date first written above upon the satisfaction of the following conditions (such date, the "Waiver Effective Date"):
 
(a)  Delivery of Limited Waiver. Each Loan Party shall have delivered a duly executed counterpart of this Limited Waiver to the Agents.
 
(b)  Officer's Certificate. The Loan Parties shall have delivered to the Agents a certificate of a duly authorized officer of each Loan Party dated the date of this Limited Waiver, in form and substance satisfactory to the Agents, certifying that the representations and warranties set forth in Section 3.3 hereof are true and correct as of such date.
 
(c)  Consent of Required Lenders. The Agents shall have received in writing the consent of the Required Lenders to enter into this Limited Waiver on behalf of the Required Lenders.
 
(d)  Agent Fees and Expenses. The Loan Parties shall have paid all reasonable, out-of-pocket fees and expenses (including, without limitation, reasonable fees, costs, client charges and expenses of counsel) incurred by the Agents arising from or relating to the negotiation, preparation, execution, delivery, performance and administration of this Limited Waiver and arising under or relating to the other Loan Documents to the extent invoiced and presented to the Administrative Borrower on or prior to the Limited Waiver Effective Date.
 
ARTICLE III  
 
MISCELLANEOUS
 
Section 3.1   Effect of Limited Waiver. Except as expressly set forth herein, this Limited Waiver shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Agents or any Lender under the Loan Documents, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Loan Documents in similar or different circumstances. This Limited Waiver shall constitute a "Loan Document" for all purposes of the Financing Agreement and all references to the Financing Agreement in any Loan Document shall mean the Financing Agreement as modified hereby.
 
Section 3.2   No Representations by Lenders or Agent. Each Loan Party hereby acknowledges that it has not relied on any representation, written or oral, express or implied, by any Lender or any Agent, other than those expressly contained herein, in entering into this Limited Waiver.
 
Section 3.3   Representations of the Loan Parties. Each Loan Party represents and warrants to the Agents and the Lenders that (i) after giving effect to this Limited Waiver, (a)
 
 
LIMITED WAIVER
TO MILACRON FINANCING AGREEMENT
 
 
 the representations and warranties set forth in the Loan Documents are true and correct in all respects on and as of the date hereof with the same effect as though made on the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date and (b) no Default or Event of Default has occurred and is continuing and (ii) this Limited Waiver has been duly executed and delivered by such Loan Party and the Financing Agreement, as amended hereby, constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
 
Section 3.4  Claims. Each Loan Party represents and warrants that it has no defenses, offsets or counterclaims with respect to the indebtedness owed by the Borrowers to the Lenders, other than in respect of deposits.
 
Section 3.5  Successors and Assigns. This Limited Waiver shall be binding upon the parties hereto and their respective successors and permitted assigns and shall inure to the benefit of the parties hereto and the successors and permitted assigns of the Lenders and the Agents.
 
Section 3.6   Headings. The headings and captions hereunder are for convenience only and shall not affect the interpretation or construction of this Limited Waiver.
 
Section 3.7   Severability. The provisions of this Limited Waiver are intended to be severable. If for any reason any provision of this Limited Waiver shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
 
Section 3.8   Costs and Expenses. The Loan Parties agree to reimburse the Agents for their reasonable out-of-pocket expenses in connection with this Limited Waiver, including the reasonable fees, charges and disbursements of counsel for the Agents.
 
Section 3.9  Counterparts. This Limited Waiver may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any party hereto may execute this Limited Waiver by signing any such counterpart. Delivery of an executed counterpart of a signature page to this Limited Waiver by telecopier shall be effective as delivery of a manually executed counterpart of this Limited Waiver.
 
Section 3.10  GOVERNING LAW. THE WHOLE OF THIS LIMITED WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
 
Section 3.11   JURISDICTION, VENUE AND SERVICE. EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF ALL FEDERAL AND STATE COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND CONSENTS THAT ANY ORDER, PROCESS, NOTICE OF MOTION OR OTHER APPLICATION TO OR BY ANY OF SAID COURTS OR A JUDGE THEREOF MAY BE SERVED WITHIN OR WITHOUT SUCH
 
 
LIMITED WAIVER
TO MILACRON FINANCING AGREEMENT
 
 
 COURT’S JURISDICTION BY REGISTERED MAIL OR BY PERSONAL SERVICE, PROVIDED A REASONABLE TIME FOR APPEARANCE IS ALLOWED, IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF, UNDER OR RELATING TO THIS LIMITED WAIVER. AT THE OPTION OF THE AGENTS, UPON THE INSTRUCTIONS OF THE REQUIRED LENDERS, ANY LOAN PARTY MAY BE JOINED IN ANY ACTION OR PROCEEDING COMMENCED BY THE AGENTS OR THE LENDERS AGAINST ANY OTHER LOAN PARTY IN CONNECTION WITH OR BASED ON THIS LIMITED WAIVER, AND RECOVERY MAY BE HAD AGAINST ANY LOAN PARTY IN SUCH ACTION OR PROCEEDING OR IN ANY INDEPENDENT ACTION OR PROCEEDING AGAINST ANY LOAN PARTY, WITHOUT ANY REQUIREMENT THAT THE AGENTS OR THE LENDERS FIRST ASSERT, PROSECUTE OR EXHAUST ANY REMEDY OR CLAIM AGAINST ANY OTHER LOAN PARTY. EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF, UNDER OR RELATING TO THIS LIMITED WAIVER BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
 
SECTION 3.12  WAIVER OF JURY TRIAL. EACH OF THE AGENTS, THE LENDERS AND THE LOAN PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS LIMITED WAIVER, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. IN ADDITION, EACH OF THE AGENTS, THE LENDERS AND THE LOAN PARTIES WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LIMITATIONS OR ANY CLAIM OF LACHES AND ANY SET-OFF OR COUNTER CLAIM OF ANY NATURE OR DESCRIPTION. EACH OF THE AGENTS, THE LENDERS AND THE LOAN PARTIES ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE FREELY MADE.
 
* * *
 


 
  IN WITNESS WHEREOF, the undersigned have caused this Limited Waiver to be duly executed and delivered as of the date first above written.




BORROWERS:

MILACRON INC.
 
 
By:  /s/ R.P. Lienesch                                                            
Name: R.P. Lienesch
Title:  Vice President - Finance and Chief Financial Officer
 



CIMCOOL INDUSTRIAL PRODUCTS INC.
D-M-E MANUFACTURING INC.
D-M-E U.S.A. INC.
MILACRON INDUSTRIAL PRODUCTS, INC.
MILACRON MARKETING COMPANY
MILACRON PLASTICS TECHNOLOGIES GROUP INC.
NICKERSON MACHINERY CHICAGO, INC.
NORTHERN SUPPLY COMPANY, INC.
OAK INTERNATIONAL, INC.
PLIERS INTERNATIONAL INC.
UNILOY MILACRON INC.
UNILOY MILACRON U.S.A. INC.
 
 
By: /s/ R.P. Lienesch                                                             
Name: R.P. Lienesch
Title: Treasurer
 
 
 
 
GUARANTORS:
 
D-M-E COMPANY
 
 
By:  /s/ R.P. Lienesch                                                   
Name: R.P. Lienesch
Title: Treasurer
 
 
MILACRON CAPITAL HOLDINGS B.V.
 
 
By:  /s/ G. van Deventer                                             
Name: G. van Deventer
Title:  Managing Director
 
 
 
MILACRON INTERNATIONAL MARKETING COMPANY
 
 
By:  /s/ R.P. Lienesch                                                   
Name: R.P. Lienesch
Title: Treasurer and Assistant Secretary
 
 

ADMINISTRATIVE AGENT AND COLLATERAL AGENT:
 
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Administrative Agent and Collateral Agent,
on behalf of the Required Lenders
 
 
By:  /s/ James M. Barbato                                                    
Name: James M. Barbato
Title: Vice President